Month: May 2016

Beware of Cyberattacks on Free E-mail Services

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Think a client won’t sue for misdirected funds?  Think again!

domain securityE-mail services, even those with the tightest security possible, can be hacked. We have heard local stories, as close as Rock Hill and Charleston, of funds being misdirected by cybercriminals through intercepting e-mails and sending out fraudulent wiring instructions.

Law firms have taken action: encrypting e-mails, adding tag lines to emails warning that wiring instructions will not be changed, adding warning paragraphs to engagement letters, in addition to normal security efforts. Many offices now require confirmation of all wiring instructions by a telephone calls initiated internally. No verbal verification?  No wires!

Last month, an attorney in New York was sued by her clients in a cybercrime situation. This time, the property was a Manhattan co-op, and the funds amounted to a $1.9 million deposit. The lawsuit alleged that the attorney used an AOL e-mail account that welcomed hackers. The complaint stated that had the attorney recognized the red flags or attempted to orally confirm the proper receipt of the deposit, the funds would have been protected.

The old phrase “you get what you pay for” is definitely applicable in these situation. Attorneys who continue to use free email services are putting themselves and their clients at greater risk for cyberattacks. Criminals understand that free email services have low security against cyber-intrusion, so they naturally gravitate to those accounts for their dirty work.

I heard one expert say that free e-mail services are not only not secure, they are also unprofessional! Surely, lenders will soon look at this issue as they decide who will handle their closings.

Buried in the Dirt

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Are you sure your IOLTA account was properly established?

A Charleston lawyer just shared a bit of an Interest on Lawyer Trust Accounts (IOLTA) horror story with us, and I’m passing it along for the benefit of all South Carolina practitioners to prevent at least one surprise in future certification attempts.

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This lawyer was being vetted by a third-party vendor for the purposes of staying on the good side of a lender. The vetting company advised that the lawyer’s IOLTA account had been set up incorrectly using his firm’s Taxpayer Identification Number (TIN).  The lawyer called The South Carolina Bar Foundation and learned that the account should have been set up using the Foundation’s TIN: 23-7181552. In order to make this change, the bank required the lawyer to open a new account…with all that entails.

As a review, here are some IOLTA facts.

  • These accounts must be used for client funds that are small in amount or expected to be held for a short time, so that the funds cannot practically be invested for the client because they won’t provide a positive net return.
  • Funds that do not meet the nominal or short-term fund requirements of an IOLTA account should be deposited in a separate demand account to earn interest for the benefit of the client, and the client’s TIN should be used.
  • Some financial institutions waive all fees for IOLTA accounts. If reasonable and customary fees are charged, those fees may be deducted from interest. Other fees and service charges are the responsibility of the attorney.
  • There should be no tax consequences for the attorney or client for IOLTA accounts.
  • The Bar Foundation maintains a list of eligible financial institutions on its website.
  • Rule 1.15(h) of the SC Rules of Professional Responsibility mandates that all lawyers with trust accounts must file a written directive with their bank requiring the bank to report any non-sufficient funds (NSF) transactions. This mandate applies to IOLTA accounts.

Check your IOLTA accounts and make sure you’re in compliance before the vetting companies arrive on the scene!

CFPB’s Proposed Rule Would Allow Consumers to Sue Banks

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Arbitration clauses would be limited

At a hearing on May 5, Consumer Financial Protection Bureau Director Richard Cordray announced that the agency has issued a proposed rule that would ban consumer financial companies from using mandatory pre-dispute arbitration clauses to deny their customers the right to join class action lawsuits.

The proposed rule can be read here, and is also found on CFPB’s website. When the proposal is published in the Federal Register, the public will have 90 days to comment.

pen mightier than swordDirector Cordray stated in his comments last Thursday that this rule is a benefit to consumers because it will discontinue the practice of entities inserting arbitration clauses into contracts for consumer financial products and services and literally “with the stroke of a pen”, blocking any group of consumers from filing class actions. He said the CFPB’s research indicates that these “gotcha” clauses force consumers to litigate over small amounts ($35 – $100) acting alone against some of the largest financial companies in the world.

Some authorities are arguing that consumers will not be benefited by the proposal because of the high cost of class actions and the fact that it is often lawyers, not consumers, who benefit financially from them. The proposal does seems contrary to the Federal Arbitration Act and legal precedent and also demonstrates the power of the agency, the power that has already been challenged in several lawsuits nationwide. Some might suggest that the agency is the entity that acts “with the stroke of a pen.”

The proposed rule does not reach to title insurance and real estate settlement services. The rule applies to products and services that extend, service, report and collect credit.

One fact seems certain. The CFPB has not completed its efforts to shake up the market!

CFPB Announces TRID Clarity in the Works

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Cordray signals notice of new rule expected late July

cfpb-logoIn an April 28 letter addressed to several industry trade groups and their members, Director Richard Cordray of the Consumer Financial Protection Bureau, said his agency has begun drafting a notice intended to provide “greater certainty and clarity” in the Know Before you Owe Rule.

The letter stated the CFPB is working hard to understand industry concerns and recognized there are places in the regulation text and commentary where adjustments would be useful.

In a press release, also dated April 28, American Land Title Association said its primary goal for the proposed adjustments is to insure consumers receive clear information about their title insurance costs on the Closing Disclosure. As we have all experienced, TRID requires a very odd negative number as the cost for owner’s title insurance in most situations. ALTA has been arguing against this strange result for many months.

The Director’s letter stated that the Bureau has begun drafting a Notice of Proposed Rulemaking (NPRM) that should be available for comments in late July. It also suggested that one or two meetings will be arranged with industry participants before the NPRM is issued. In the meantime, the letter encouraged continued feedback.

The text of the letter can be accessed here.